Conference - DPP & Judge speak on murder / manslaughter

Victor

http://www.irishtimes.com/newspaper/ireland/2008/0716/1216073111341.html

DPP says issue in most murder trials is if there was intent to kill
CAROL COULTER, Legal Affairs Editor

THE DISTINCTION between murder and manslaughter creates a crucial distinction between intentional and less culpable forms of homicide, according to the Director of Public Prosecutions.

James Hamilton was speaking to an international conference of the Society for the Reform of Criminal Law in Dublin yesterday.

He said in most murder trials the issue was not whether the accused killed the victim, but whether he intended to kill him or cause serious injury, this being the distinction between murder and manslaughter.

Some commentators argued that the mandatory life sentence for murder led some accused people to refuse to plead guilty, gambling that they would get a verdict of manslaughter at trial.

It had been argued that a single offence of homicide would lead to a greater number of guilty pleas and a saving of court time and resources. The distinction between the different levels of culpability would then be decided at sentencing stage.

However, he said this could lead the accused person who pleaded guilty to argue that the killing was not intentional in an attempt to reduce their sentence.

“In such circumstances the sentencing hearing would become a mini-trial in which the facts surrounding the murder would have to be determined.”

He said the right to trial by jury is constitutionally mandated under Article 38.5 of the Constitution.

This had been interpreted as meaning that all relevant issues of fact must be left to the jury, and “the shadow of unconstitutionality” would fall over legislation which sought to deprive them of any portion of their fact-finding role.

This meant that in cases other than murder, to which a mandatory life sentence applies, any move to attribute a greater fact-finding role to the sentencing judge would be constitutionally suspect.

He also said if there was a dispute as to the factual basis on which an accused was pleading guilty, it may be necessary for the prosecution to refuse to accept the guilty plea.

He said this issue frequently arose in his office when there was a murder charge and a guilty plea to manslaughter was offered.

“It can be essential from the sentencing point of view that the prosecution is able to explain the basis on which the plea is accepted.”

This created a difficulty for the prosecutor in accepting a guilty plea on the basis that the jury was only likely to bring in a conviction for manslaughter.

In his address to the conference Mr Justice Paul Carney reiterated views expressed a month ago in University College Cork when he said that murder cases coming before the Central Criminal Court fell into three broad categories: gangland crime, killings where members of the immigrant community kill one another and the “mixed bag” of wife killings, family rows and rows in drink.

Referring to killings within immigrant communities, he said: “The domestic community has in my opinion never become particularly excited about this category of killing because it concerns one member of a non-national group killing another. This category of killing did not exist before the arise of the Celtic Tiger.”

He said gangland killing also did not attract public concern until recently, when “as a matter of routine, innocent women and children are now being caught in the crossfire”. He stressed that where there was evidence to go before a jury in relation to gangland killings, a jury will act on it and convict.

johnnyskeleton

What's your take on this Victor?

I'm in favour of retaining the mandatory life sentence because:

1) It distinguishes murder as the most serious offence of all
2) Because a person is entitled to credit for pleading guilty (typically 25% off the sentence) if this became common place it could have a net effect of reducing sentences for murder to 10-12 years or some other average or benchmark
3) It might make more sense instead to have murder with malice (i.e. murder 1), plain old murder (murder 2) and then manslaughter for genuine accidental killings or where there is no intent to kill or cause serious harm
4) Murder trials are great, the last bastion of the "have a bash" type of court case.

Victor

I think the average life sentence is too short. People are entitled to remission and to credit for pleading guilty, but if you plan to kill someone (and I include habitually carrying a weapon as planning) you should be going to jail for 30 years (less remission and credit), such that most murder sentences are more like twenty yeasr than 12-14.

Fools who get drunk and / or get into a gang fight and kill someone need to be taught a leeson. Being drunk or high (whatever about being medicated) is something you can control and if you become an angry drunk, then stop drinking. they may not have planned to kill someone, but they engage in behaviour where death or severe injury is a possibility.

Corporate manslaughter and vehicular manslaughter charges aren't applied nearly enough. While strict liability and long sentences are poor bedfellows, health and safety breaches and dangerous driving causing death do have an element of mens rea - perhaps not enough for a life sentence, but if someone thinks "I'm going to take a short cut and rules bedamned" then they need to suffer the consequences.

For "attempted" violent offences I think sentencing should be just as hard - no reduction because you have a bad aim.

johnnyskeleton wrote: »

4) Murder trials are great, the last bastion of the "have a bash" type of court case.

Eh?

johnnyskeleton

Victor wrote: »

I think the average life sentence is too short. People are entitled to remission and to credit for pleading guilty, but if you plan to kill someone (and I include habitually carrying a weapon as planning) you should be going to jail for 30 years (less remission and credit), such that most murder sentences are more like twenty yeasr than 12-14.

Life sentences are for life. However, the minister for justice (through his agents, the parol board) usually lets people out on licence after a period of time (typically 14 years). So this is a matter for the minister for justice rather than the law itself. Interesting that while the last minister talked tough on crime, brought in draconian legislation and criticsed judges, he still let lifers out after 12-14 years on licence. Another option would be like they have in the UK where a life sentence can be imposed with a stated minimum to be served (e.g. life with a minimum of 30 years to be served).

Victor wrote: »

Fools who get drunk and / or get into a gang fight and kill someone need to be taught a leeson. Being drunk or high (whatever about being medicated) is something you can control and if you become an angry drunk, then stop drinking. they may not have planned to kill someone, but they engage in behaviour where death or severe injury is a possibility.

While I wouldn't put it in those terms (because each case is different), I don't see why hefty sentences including life can be passed for manslaughter.

Victor wrote: »

Corporate manslaughter and vehicular manslaughter charges aren't applied nearly enough.

I agree, there are whole seams of untapped indictable crimes going to waste, when they could be turned into productive books of evidence. I think the people of Ireland are crying out for more prosecutions and more trials.

Victor wrote: »

While strict liability and long sentences are poor bedfellows, health and safety breaches and dangerous driving causing death do have an element of mens rea - perhaps not enough for a life sentence, but if someone thinks "I'm going to take a short cut and rules bedamned" then they need to suffer the consequences.

I take it with health and safety you are talking about someone being killed on a building site from faulty scaffolding rather than someone getting food posioning from a dirty fork. In such circumstances, manslaughter would be the appropriate charge, but the difficulty is finding who is responsible. While I think there should be some prosecutions arising from death in the workplace situations, I'm not entirely sure if this is in the best interests of justice or whether it is simply a need to find someone to blame.

Re: dangerous driving causing death, a fundamental element is culpability rather than the mens rea per se.

Victor wrote: »

For "attempted" violent offences I think sentencing should be just as hard - no reduction because you have a bad aim.

It depends on how serious the attempt was I think.

Victor wrote: »

Eh?

There is a mandatory penalty for murder. Therefore, there is no benefit to pleading guilty. Therefore, if there is any old possibility of getting an acquittal or a reduction to manslaughter it's worth a punt. That's why a disproportionate amount of the reported criminal cases arise from murder cases - because in other cases the risk of running a trial is often not worth testing a legal point over.

Our man in Havana

With a murder trial there is no point in pleading not guilty as the penalty is the exact same i.e. a mandatory life sentence. So it is always worth having a go at trying to get an aquittal, there is nothing to loose.

Have there ever been any murder defendants that have pleaded guilty at the earliest chance?

johnnyskeleton

Bond-007 wrote: »

With a murder trial there is no point in pleading not guilty as the penalty is the exact same i.e. a mandatory life sentence. So it is always worth having a go at trying to get an aquittal, there is nothing to loose.

Have there ever been any murder defendants that have pleaded guilty at the earliest chance?

There's always one:
http://www.rte.ie/news/2008/0121/coughlans.html

Probably less than 5% plead guilty to murder, but a good portion plead to manslaughter and run it on the basis of a defence which argues that there was no intent to kill.